Called to determine the constitutionality of certain Covid-19 related regulations, the Plenary of the Federal Supreme Court (Plenário do Supremo Tribunal Federal – STF) on 29 April 2020 issued a preliminary decision suspending the validity of Article 29 of the Preliminary Measure No. 927/2020 (Measure issued to face Covid-19 pandemic). Article 29 of the Preliminary Measures N.927/2020 provided that the cases of contamination by Covid-19 were not to be considered as occupational disease, except upon proving the causal link.

According to the Judges, the suspension of the validity of Article 29 operated because of the “diabolical” difficulty in proving the causal link. With this decision, the STF reversed the burden of the proof on employers, who should demonstrate that their employees’ infection did not originated from the workplace. 

In its press release National Confederation of Industry (Confederação Nacional da Industri - CNI) clarified that the STF decision did not mean that Covid-19 is automatically recognised as an occupational disease. The suspension of Article 29 simply meant that the current constitutional and legal social security system applied. 

“In other words, this decision did not generate, as a direct consequence, the assumption that whenever an employee is affected by Covid-19, this will be considered an occupational disease. In fact, the Federal Supreme Court only suspended, in a preliminary manner, the effectiveness of Article 29 of Preliminary Measure N. 927/2020, leaving the solution of controversies to the legislation on occupational diseases and social security and accident responsibilities existing prior to that measure”.

The STF had yet to decide on the constitutionality of Article 29, since this was a preliminary decision. However, meanwhile Provisional Measure N.927 was no longer in force as of 19 July 2020, thus the Federal Supreme Court will no longer analyze the merits of the matter.

The actual legislation foresees that “the professional disease (article 20 I, Social Security Benefits Law 8,213/1991) presupposes the peculiar exercise of a certain activity and that this disease is included in the list produced by Social Security. For reasons that are not only legal but also factual, Covid-19 is not and cannot be considered an occupational disease. For a specific disease to be considered an occupational disease (article 20 II, Social Security Benefits Law 8,213/1991), there must be a direct relationship between the activity performed by the employee and the special conditions in which it is performed, according to previously published lists, or, even if not contained in the social security relationship, if the causal link is recognized” said CNI Legal Superintendent, Cassio Borges.

“In the exceptional hypothesis that could Covid-19 as an occupational disease - no presumption of causality is possible. The link between illness and work must be proven”. This is especially true for professionals, who due to the nature of their activities, are obliged to have direct contact with the virus (i.e in the health sector).

For a comprehensive clarification of the Brazilian legislation applying in cases of occupational diseases, see the recently published article “The failure to characterize Covid-19 as an occupational disease”, by Sylvia Lorena T. de Sousa e Pablo Rolim Carneiro on 17 August 2020.